Friday, November 21, 2008

Gerald Uelmen on assessing whether a constitutional initiative is a revision: Does his "test" have bearing on Prop. 8 petitions?

Gerald Uelmen, Handling Hot Potatoes: Judicial Review of California Initiatives after Senate v. Jones, 41 Santa Clara L. Rev. 999, 1017, 1019 (2000-2001):

"In defining 'revision,' the supreme court should recognize that legislative or convention deliberation or debate hold several advantages over the initiative process as instrument of change." (1017) Uelmen believes that the shortcomings of initiatives - such as drafting gaffes and obfuscation by special interests - become "most important in the context of complex changes, which require ongoing interpretation and application ... Rather than merely offering a label [as in "fundamental" change] to reinstate a conclusion, the court should be asking whether the change the measure accomplishes is significant enough that the adversary deliberation of a legislative proposal or a constitutional convention is necessary. "

"Ultimately, the value we are seeking to uphold is the value of rational discourse before we make changes in our constitution with widespread impact. The test of what is a 'revision' must include an assessment of what was lost in the elimination of that rational discourse by the use of the initiative process." (1019)

Can Uelmen's test be applied to Prop. 8, even though it does not make a "complex" change? Because opponents of Prop. 8 contend that it denies equal protection and a fundamental right to a "suspect class," should they underscore the need for a deliberative process, by considering evidence of the corrosive, if successful, effects of prejudice and fearmongering on persuading a bare majority of voters to pass Prop. 8? Uelmen notes that the anti-crime initiative, Proposition 115, "was presented to the public in a media blitz of coat hangers and gas chambers," even though the Court overturned Proposition 115 as an unconstitutional restriction on judicial power. (1017)

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